Opinion
INTRODUCTION
Plаintiff, a California resident (since 1956) who had lived in New Jersey until 1951, filed a premises liability action against Ford Motor Company, alleging she had been diagnosed with mesothelioma as a result of her exposure to asbestos from laundering her father’s and brother’s asbestos-covered clothing during the time they worked with asbestos as independent contractors hired by Ford to install asbestos insulation at its Metuchen, New Jersey, plant. At trial, the jury found Ford liable for 5 percent of the plaintiff’s damages and awarded her $40,000. Ford appeals, claiming (1) the New Jersey statute of repose bars plaintiff’s action and (2) it owed plaintiff no duty in this case. We disagree on the first point but agree on the second and therefore reverse.
In 2004, Eileen Honer was diagnosed with mesothelioma.
According to trial testimony, Eileen Honer was bom in 1933 and lived in her parents’ home in New Jersey until she turned 18 in 1951. Beginning around the age of 11 or 12 and fоr as long as she lived there, Honor’s chores included doing the family’s laundry. For about 25 years, Honor’s father (Joseph Mara, Sr.) worked as an asbestos insulator with Charles S. Wood & Co. until becoming a supervisor with another insulation contractor in about 1948. Beginning in 1945, Honer’s brother (Joseph Mara, Jr.) also worked for Charles S. Wood & Co. as an asbestos insulator. Before washing her father’s and brother’s work clothes, Honer would have to shake them out because they were “dirty,” “dusty,” and “nasty.”
In the mid-1940’s, Ford Motor Company entered into contracts for the construction of a new Lincoln-Mercury assembly plant in Metuchen, New Jersey, including asbestos insulation work on pipes, ducts and oven spray booths used for drying freshly painted cars. Ford knew asbestos was being installed on its premises; it knew of contrаcts between general contractor Wigton Abbott and subcontractors August Arace and Charles S. Wood for the installation of insulation at the Metuchen plant; contracts specifically referenced a wage agreement negotiated with the International Association of Heat & Frost Insulators & Asbestos Workers (Local 32); Charles S. Wood’s letterhead referred to asbestos, and the general contractor’s correspondence from July 30, 1947, to Ford included copies of these agreements.
Between 1947 and 1948, Honer’s brother worked at the Ford plant for about one year while her father worked there for about six months. Ford owned the Lincoln-Mercury plant from the start of construction in 1945
Victor Roggli, M.D., testified that, as a result of doing the family laundry, Honer received a substantial exposure to asbestos. The asbestos fibers deposited on her father’s and brother’s clothing would be liberated when the clothing was shaken out. Such household exposure to asbestos meant a four to eight times greater risk of contracting mesothelioma. Those exposed through family members working as insulators had the greatest exposure to asbestos and thus the greatest risk.
According to Dr. Roggli, by 1930, as evidenced by documents including the seminal “Merewether Report” (Merewether & Price, Report on Effects of Asbestos Dust on the Lungs and Dust Suрpression in the Asbestos Industry (1930)), it was known that asbestos was a toxic substance that could cause fatal lung disease; it was known that it was important to use dust suppression methods (wet down, ventilation, protective equipment) to reduce the risk of disease; it was known that the use of products containing asbestos (not only mining or manufacturing asbestos) could cause dangerous exposures; it was known that bystanders were at risk of exposure; and it was known that there was a considerable latency period between asbestos exposure and disease manifestation. As evidenced by case reports, the association between asbestos exposure and cancer was known by the 1940’s.
By the early 1900’s, Dr. Roggli testified, the dangers of toxic substances being transferred from the workplace to the home through workers’ clothing as well as methods for preventing such “take home” exposures were known. He cited industrial hygiene textbooks, such as the 1913 textbook Safety, Methods for Preventing Occupational and Other Accidents and Disease by William H. Tolman and Leonard B. Kendall; there was no dispute that asbestos was a known toxin by the 1930’s. According to Dr. Roggli, both asbestos hazards and the risk of toxic take home exposures had been reported in the scientific literature before 1945.
Ford’s own expert witness (Larry Roslinski) acknowledged that in 1930, according to the Merewether Report, “exposure to asbestos could be hazardous to human health,” and the occupational health community—including the industrial hygiene community—knew of these findings in the 1930’s. Rоslinski was a certified industrial hygienist in the late 1960’s through the 1970’s and
Jurors were instructed as follows;
“Eileen Honer claim[s] that she was harmed because of the way Ford Motor Company manаged this property. To establish this claim [she] must prove all of the following;
“One, that Ford Motor company owned the property; two, that Ford Motor Company was negligent in the use or maintenance of the property; three, that [she] was harmed; and, four, that Ford Motor Company’s negligence was a substantial factor in causing [her] harm.
“A person that owns property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. A person that owns property must use reasonable care to discovert] any unsafe conditions and to repair, replace or give adequate warning of anything that could be reasonably expected to harm others. In deciding whether Ford Motor Company used reasonable care you may consider, among other factors, the following:
“ ‘A,’ the location of the property; ‘B,’ the likelihood that someone would come to the property in the same manner as Eileen Honer’s father and brother did; ‘C,’ the likelihood of harm; ‘D,’ the probable seriousness of the harm; ‘E,’ whether Ford Motor Company knew or should have known of the condition that created the risk of harm; ‘F,’ the difficulty of protecting against the risks of such harm; and, ‘G,’ the extent of Ford Motor Company’s control over the condition that caused the risk of harm.
“Now, Ford Motor Company was negligent in the use or maintenance of the property if, one, a condition of the property created an unreasonable risk of harm; two, Ford Motor Company knew [or] through the exercise of reasonable care—should have known about it, and; three, Ford Motor Company failed to repair the condition, protect against the harm from the condition, or give adequate warning of the condition.
*23 “[I]f an unsafe condition of the property is so obvious that a person could reasonably be expected to observe it, then the owner does not have to warn others about the dangerous condition.”
Under Privette v. Superior Court (1993)
In its special verdict, the jury determined (1) Ford owned the Ford-Lincoln Mercury plant; (2) it was negligent in its use or maintenance of the property during the time Honor’s father and brother worked on the premises; (3) Ford’s negligence was a substantial factor in causing harm to Honer; (4) Honer suffered damages in the amount of $800,000; and (5) Ford was responsible for 5 percent of Honer’s damages.
Ford appeals.
DISCUSSION
New Jersey’s Statute of Repose for Persons Who Design, Plan, Supervise or Construct Improvements to Real Property Does Not Bar Honer’s Claims.
First, Ford argues, Honer’s claims are barred by New Jersey’s 10-year statute of repose which provides as follows: “No action, whether in contract,
In a prior appeal, we reversed the trial court’s grant of summary judgment in Ford’s favor on the basis of this statute. (Honer v. Ford Motor Company (Oct. 15, 2007, B189160) [nonpub. opn.].) According to Ford, “The California Supreme Court’s recent decision in McCann v. Foster Wheeler LLC[, supra,]
In McCann v. Foster Wheeler LLC, supra,
By its terms, the Oklahoma statute of repose specifically applies to “any person owning, leasing or in possession” of the improvement to real property (as well as “any person . . . performing or furnishing the design, planning, supervision or observation of construction or construction of such an improvement”) while the New Jersey statute of repose on which Ford relies—by its express terms—precludes an action against “any person performing or furnishing the design, planning, surveying, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction,” but, unlike the Oklahoma statute considered in the McCann case, the New Jersey statute “shall not apply to actions against any person in actual possession and control as owner, tenant, or otherwise, of the improvement . . .” (NJ. Stat. § 2AJ4-1.1, subd. (a), italics added).
Although it conceded ownership of the Metuchen, New Jersey, plant at trial, Ford ignores this dispositive language. According to Ford, O’Connor v. Altus (1975) 67 NJ. 106, 118-119 [
We Conclude Ford Owed Honer No Duty as a Matter of Law.
“A fundamental element of any cause of action for negligence is the existence of a legal duty of care running from the defendant to the plaintiff.” (Taylor v. Elliott Turbomachinery Co. Inc. (2009)
As our Supreme Court explained in Cabral v. Ralphs Grocery Co. (2011)
As our Supreme Court emphasized in Cabral, “Before applying the Rowland considerations to the duty question posed here, we notе an important feature of the analysis: the Rowland factors are evaluated at a relatively broad level of factual generality. Thus, as to foreseeability, we have explained that the court’s task in determining duty ‘is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed . . . .’ ” (Cabral, supra,
The Cabral court further explained: “In applying the other Rowland factors, as well, we have asked not whether they support an exception to the general duty of reasonable care on the facts of the particular case before us, but whether carving out an entire category of cases from that general duty rule is justified by clear considerations of policy. Thus in Rowland itself, considering whether the traditional property-law categories of invitee, licensee and trespasser should govern a property owner’s duty of care, we observed that while in particular cases the certainty of injury, the burden of exercising due care, or the availability and cost of insurance may be greater as to one class of persons entering real property than as to another, such particular instances ‘do not warrant the wholesale immunities resulting from the common law classifications.,[
“By making exceptions to Civil Code section 1714’s general duty of ordinary care only when foreseeability and policy considerations justify a categorical no-duty rule, we preserve the crucial distinction between a
“[T]he legal deсision that an exception to Civil Code section 1714 is warranted, so that the defendant owed no duty to the plaintiff, or owed only a limited duty, is to be made on a more general basis suitable to the formulation of a legal rule, in most cases preserving for the jury the fact-specific question of whether or not the defendant acted reasonably under the circumstances.” (Cabral, supra,
In this case, just as in Cabral, no question as to the breach of the duty of care is presented. The issue of Ford’s negligence was submitted to the jury, which found Ford had breached its duty under the particular circumstances shown by the evidence, but assessed Ford’s comparative fault as slight, at 5 percent. The factual details—facts which may have been important to the jury’s determination of negligence, causation, and comparative fault—are not of central importance to the duty question presented here. (Cabral, supra,
We must determine whether Ford owed Honer a duty of care. Citing Privette v. Superior Court[, supra,]
In our view, the issue before us is whether a premises owner has a duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner’s business.
“We examine here the first three related considerations identified in Rowland: ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, [and] the closeness of the connection between the defendant’s conduct and thе injury suffered . . . .’ ” (Cabral, supra,
While Honer seeks to hold Ford liable for its management of its premises, it is undisputed Honer never set foot on those premises; rather, she alleged her father and brother brought asbestos dust home on their сlothing after working on Ford’s property and, more than 50 years later, she was diagnosed with mesothelioma as a result of this exposure. A property owner’s duty to maintain its premises in a reasonably safe condition extends to all areas visitors are expressly or impliedly invited to use and over which the owner exercise actual or apparent control, including “areas within a building used in common by patrons of several businesses,” “areas outside the building used by the general public in common with business visitors,” “areas of ingress and egress visitors are implicitly induced to use;” conversely, a property owner is “not ordinarily liable for injuries that occur on property not in his ownership, possession, or control unless he created the condition or had a right to cоntrol activities at the site.” (Cal. Tort Guide (Cont.Ed.Bar 3d 2011 Supp.) § 10.13, pp. 493-494, citations omitted.)
In performing the balancing required by Rowland, supra,
“The purpose of the plaintiff’s presence on the property, while not determinative, must be considered along with other circumstances. (Ann M. v. Pacific Plaza Shopping Center [(1993)]
“[T]his legal duty generally is owed to the class of persons who it is reasonably foreseeable may be injured as the result of the actor’s conduct.” (Lugtu v. California Highway Patrol, supra,
“We ask next whether the public policy factors identified in Rowland—‘the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved’ (Rowland, supra,
“ ‘[F]oreseeability alone is not sufficient to create an independent tort duty.’ (Erlich v. Menezes [(1999)]
Here, even assuming a property owner can reasonably be expected to foresee the risk of latent disease to a worker’s family members secondarily exposed to asbestos used on its premises, we must conclude strong public policy considerations counsel against imposing a duty of care on property owners for such secondary exposure. (See O’Neil v. Crane Co., supra, 53 Cal.4th at pp. 364-365 [“strong policy considerations counsel against imposing a duty of care on pump and valve manufacturers to prevent asbestos-related disease”].) The Rowland factors do not support a finding of duty in this case.
“To avoid redundancy with the other Rowland factors, the moral blame that attends ordinary negligence is generally not sufficient to tip the balance of the Rowland factors in favor of liability,” and courts require a higher degree of moral culpability such as where the defendant (1) intended or planned the harmful result, (2) had actual or constructive knowledge of the harmful consequences of their behavior, (3) acted in bad faith or with a reckless indifference to the results of their conduct, or (4) engaged in inherently harmful acts. {Adams v. City of Fremont (1998)
The next two Rowland factors—the extent of the burden to the defendant and the consequences to the community if the court imposes on a particular defendant a duty of care toward the plaintiff—weigh heavily against Honer. As explained in Oddone v. Superior Court, supra,
“The gist of the matter is that imposing a duty toward nonemployee persons saddles the defendant employer with a burden of uncertain but potentially very large scope. One of the consequences to the community of such an extension is the cost of insuring against liability of unknown but potentially massive dimension. Ultimately, such costs are borne by the consumer. In short, the burden on the defendant is substantial and the costs to the community may be considerable, [f] Assuming for the purposes of argument that there is some risk to nonemployee persons, in a less than perfect world it appears to make more sense to look to the nonemployee person’s insurance to cover the risk. In the normal course of events, such insurance will be already in place and its cost is not likely to be influenced by the risk created by the employer’s conduct.” (Oddone v. Superior Court, supra, 179 Cal.App.4th at pp. 822-823.)
“Asbestos is subject to strict regulation under both federal and California law. (See U.S. v. Weintraub (2d Cir. 2001)
In California, “[F]oreseeability and extent of burden to the defendant . . . have evolved to become the primary [Rowland] factors” to be considered on the question of legal duty. (Vasquez v. Residential Investments, Inc. (2004)
We note that, in recent years, a number of other jurisdictions have confronted the issue of liability in secondary or “take-home” exposure cases, and their rulings are generally split into two categories: (1) those focusing on the foreseeability of the harm to the plaintiff resulting from the premises owner’s or employer’s failure to take protective measures (and finding a duty) and (2) those that focus on the (absence of a) relationship between the premises owner/employer and household member among other policy concerns. (See Levine, Clearing the Air: Ordinary Negligence in Take-Home
For example, in Miller v. Ford Motor Co. (In re Certified Question) (2007)
In sum, after considering the Rowland factors, as further clarified in Cabral, we conclude that a property owner has no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner’s business. While the overall policy of preventing future harm is ordinarily served, in tort law, by imposing the costs of negligent conduct upon those responsible, the policy question is “whether that consideration is outweighed, for a category of negligent conduct, by laws or mores indicating approval of the conduct or by the undesirable consequences of allowing potential liability.” (Cabral, supra, 51 Cal.4th at pp. 781-782, italics added.) It follоws that Ford owed no duty to Honer.
The judgment is reversed. Each party is to bear its own costs of appeal. Perluss, P. J., and Zelon, J., concurred.
A petition for a rehearing was denied June 19, 2012, and the opinion was modified to read as printed above.
Notes
After judgment was entered in her favor, Honer died (on Nov. 6, 2009). Thereafter, her daughter (Mary Campbell) filed a motion to continue this action as her mother’s successor in interest pursuant to Code of Civil Procedure section 377.32, and we granted this motion.
The jury allocated 60 percent of the fault for Honer’s damages to subcontractor Charles S. Wood & Co., 10 percent to subcontractor August Arace, 10 percent to general contractor Wigton Abbott and 15 percent to insulation manufacturer Baldwin, Ehret & Hill.
“In Giest v. Sequoia Ventures, Inc. (2000)
Accordingly, we need not address the Privette line of cases on which Ford relies.
The court in Oddone v. Superior Court (2009)
Although our analysis does not turn on this distinction, we note that in this case, the relationship between Ford’s conduct and the injury Honer suffered is even more attenuated inasmuch as Ford hired a general contractor to perform the work, that general contractor hired a subcontractor, that subcontractor hired another subcontractor, and that subcontractor employed Honer’s father and brother.